This is a motion by the appellant to set aside the order of this Court affirming the judgment of the Court below, *25and proceedings subsequent thereto, both in this Court and the Court below. The ground of this motion is that the judgment ivas rendered without the concurrence of two of the Justices of this Court who were present at and heard the oral argument of the case. It is founded upon the affidavit of the appellant, which sets forth, substantially, that the case Avas orally argued before Justices Field and ISToetoh, in the absence of Justice Cope, that no other argument has been had except the filing of printed briefs; that the case Avas decided by Justices Field and Cope, Justice Uoetos" taldng no part in the decision; that a remittitur has been sent to the Court beloiv and a judgment entered thereon, on which the defendants are about to issue execution.
Sec. 10 of the act organizing this Court provides that “ the presence of two Justices shall be necessary for the transaction of business, excepting such business as may be done at chambers; and the concurrence of íayo Justices who have been present at and heard the arguments shall be necessary to pronounce a judgment. If tAvo ayIio have been present at and heard the arguments do not concur, the case shaE be reheard.”
The counsel for the appeEant admitted, on the argument of this motion, that the counsel for both parties agreed with Justice Cope, before the case Avas argued, that he might participate in the decision, although he should not hear the oral argument, and under this agreement he left for San Francisco and was not present Avhen the case Avas argued and submitted. It seems' that Justice Cope had heard the argument in another case which involved the same question, and as the counsel intended to and did file elaborate briefs, there Avas the less necessity for his presence Avhen this case was oraEy argued.
It has been repeatedly and uniformly decided by this Court that it loses aE control and jurisdiction over a case after the remittitur has been filed in the Court below. (Grogan v. Ruckle, 1 Cal. 194; Mateer v. Brown, Id. 231; Leese v. Clark, 20 Id. 387.) In the last case this Court says: “ The Supreme Comt has no appeEate jurisdiction over its own judgments; it cannot review or modify them after the case has once passed, by the issuance of the remittitur front its control. The Court cannot recall the case and *26reverse its decision after the remittitur is issued.” In order, therefore, to afford parties who may desire it an opportunity of moving for a rehearing, or to amend, modify, or set aside the judgment, one of the long standing rules of this Court is, that no remittitur to the Court below shall issue until the expiration of ten days after the judgment is rendered, except by consent of the parties or a special order made upon notice. Ho excuse is shown why this application was not made within the ten days allowed by the rules of this Court, or before the Court had lost control of the case by filing the remittitur in the Court below.
Under all the circumstances of this case we think it clear that the appellant has waived the objection on which this motion is founded. The agreement made between the counsel and Justice Cope, and the failure to make the objection before the remittitur was filed in the Court below, are either of them a waiver of the objection.
The statute of Hew York upon this subject provides as follows: “ Hor can any Judge decide or take part in the decision of any question which shall have been argued in the Court when he was not present or sitting therein as a Judge.” This law is prohibitory in its terms, and yet it was held that an order “ is not void for the reason that one of the three Judges who composed the Court when the decision embodied in the order was pronounced did not hear the argument of the motion.” (Corning v. Slosson, 16 N. Y. 294.) We do not agree with the counsel for the appellant that the mere fact that one of the Judges who participated in a decision concurred in by only two Judges did not hear the oral argument renders the iudgment absolutely void. We consider it an error or irregularity which may be waived by the parties, and that it has been done in this case.
The motion is denied.
Norton, J.A motion is made in this case to set aside the judgment entered in this Court, and all subsequent proceedings, upon the ground that the judgment was not pronounced by two Judges who were present at and heard the argument. The facts are that the case was argued orally before two Judges and that full *27briefs were subsequently submitted to the Judges. When the case was about to be called, either on the same day or day before, one of the three Judges stated in the court room, during the time of a recess, that he was about to leave the city and should be absent when the case was called. Thereupon the counsel for the respective parties, after expressing a desire that he should hear the argument, agreed that he should participate in the decision or consideration (the precise word not being remembered) of the case, although not present at the oral argument. This Judge and one of the two who heard the oral argument concurred in the judgment. The other Judge who heard the oral argument did not concur.
It has never been considered that the statute requiring that two Judges who heard the argument should concur in pronouncing the judgment necessarily required all cases to be argued orally, but on the contrary a large portion of the cases before the Court are submitted on briefs and decided without any oral argument. This is done simply by submitting the cases on the briefs without any written stipulation of the parties.
The agreement between the counsel above mentioned was a stipulation that this case might be heard orally before two Judges and submitted to the three on briefs to be filed. There is no room for the suggestion that this agreement could be considered as providing that the third Judge should participate in consultation about the case but not participate in the decision. He was to participate in the proper disposition of the case, and that includes the pronouncing of the judgment. It would have been idle and frivolous to agree that he might merely give his advice to the other Judges. The purpose of the stipulation was obviously to meet the contingency that the two Judges who heard the oral argument might not agree.
The stipulation above referred to was not reduced to writing, but the counsel for the parties, and between whom the stipulation was made, now agree in open Court upon its terms so far as essential to this motion, and the moving party does not rely upon the fact that it was not reduced to writing, but merely claims that its terms did not amount to a waiver of the statutory provision that two Judges who had heard the oral argument must concur in the judgment. *28We think this is not the proper effect of the stipulation, but that it authorized the three Judges to dispose of the case after the briefs should be submitted in the ordinary way of disposing of cases submitted on briefs, and that it was competent for counsel to make such a stipulation in regard to the mode of considering and deciding the case.